Kathryn Fort, director of the Law Clinic at Michigan State University’s College of Law, where she also runs the Indian Law Clinic, is an expert on the Indian Child Welfare Act. Congress passed ICWA in 1978 to protect Indian children from unnecessary removal from their parents and tribal communities. On July 15, 2026, the Uniform Law Commission approved the Uniform State Indian Child Welfare Act which is the first attempt to update ICWA’s requirements to match today’s legal practices. Fort answers questions about the Act and its potential impact for protecting tribal families.
What does the Uniform State Indian Child Welfare Act do?
The Uniform State Indian Child Welfare Act reorganizes and updates the 1978 ICWA, hopefully leading to better implementation of protections for Native children and families. However, the Uniform State ICWA isn’t an automatic state law and it doesn’t govern anywhere independently. It is a uniform law that’s been adopted by the Uniform Law Commission that can be used by tribes and state legislatures if they so wish. An enactment package for the Act will be available in the beginning of October.
The Uniform Law Commission is made up of representatives from all 50 states, plus the District of Columbia, Puerto Rico and the U.S. Virgin Islands. For a uniform act to be adopted by the ULC, more than 30 states must vote in favor of the act. Any uniform act comes with an extensive commentary that includes examples, guidance and reasoning for policy choices. This commentary will be useful for attorneys and judges in states that adopt a state ICWA moving forward and can be an incredible resource.
Is a uniform act required to be in place before a state can pass their own ICWA?
That’s a great question. No, there are 17 states with their own state ICWA laws already, including Michigan. I was part of the team that wrote the Michigan Indian Family Preservation Act, which the Michigan legislature passed in 2013.
However, writing a state act is a lot of work for both the tribes and the state. This uniform act brought together ICWA experts, tribal representatives and other stakeholders from all over the country over a four-year process to create and preserve ICWA standards, while also expanding and reorganizing the law to fit with today’s practices.
In my practice with the Indian Law Clinic at MSU, I represent tribes in ICWA cases, and we practice a lot in states that don’t have a state ICWA, like Florida, Tennessee and Ohio. These are very difficult cases because there are few or no federally recognized tribes in the state, so the judges and practitioners there have very little education on ICWA’s requirements. In addition, there’s not a lot of pressure for those states to pass a state ICWA. In this context, those states could simply take the ULC’s Uniform State ICWA and adopt it in its entirety.
How does the Uniform State ICWA bolster the 1978 ICWA?
Congress passed ICWA in 1978 to prevent the wholesale removal of children from their families and tribes and ensure federal minimum, uniform, standards. So, a Native child and family in Florida should have the same protections as one in Washington—but that’s just not the case for many reasons.
This Uniform State ICWA does three things that are beneficial. First, it explicitly applies the protections of ICWA to all possible proceedings and hearings. This is something that gets litigated a lot; ICWA defines terms very broadly, for example, it isn’t clear at what hearing a petitioner must meet ICWA’s evidentiary burden. With the uniform act, we were able to answer that kind of question, shrinking the margin of interpretation.
Second, as a potential state law, this uniform act directs state agencies on what to do. Federal laws, including ICWA, are subject to certain limitations in directing states. States, however, can and do use statutes to direct their agencies to achieve certain goals. The Uniform State ICWA has the ability to do that, and ensure state and private agencies follow ICWA’s directions.
Finally, it adopts a “bench book” style of language for judges and practitioners. A bench book is a guide for judges to use from the bench and is often a checklist of what they need to do at each hearing. We’ve taken that style of writing and put it into this act so it’s directive. This is one of the reasons this uniform act is longer than ICWA. At every hearing, the uniform act outlines what the court has to do, or order, for the family. This includes things like ensuring notice has gone to the tribe, advising parents on their right to counsel, determining whether the child needs counsel and acknowledging whether the tribe is part of the hearing.
The goal is that if a state adopts this uniform act, children and families will uniformly get the full panoply of protections that ICWA provides plus the additional protections outlined in this act.
How did you contribute to the Uniform State ICWA?
When the Uniform Law Commission decides to pursue a project, they first get a study committee together, which involved a two-year process focused on educating commissioners about what ICWA is, researching what states have done and determining whether a uniform act would be helpful. As an expert in the field, I was asked to serve as the reporter to weigh all stakeholder input and work with the co-chairs of the committee to develop a report and recommendation on whether to move forward.
The Uniform Law Commission approved the act to advance from the study committee to a drafting committee—which itself is a big step as many proposed uniform acts don’t move forward—and I was then asked to serve as the reporter for the drafting committee. My role this time was to make sure the committee had a broad base of observers and participants, work with Uniform Law Commission staff and, most importantly, draft and write the law over another two years. This required in-person meetings and line-by-line feedback with commissioners and observers, as well as many, many meetings and emails going over all of the language.
As an appellate litigator, I spend my time trying to pick away at acts and statutes to make my argument. So, this was a difficult change for me! As I was writing the act, I was thinking about all the ways it could be interpreted or challenged. It was a growth opportunity for me.
How did your role as an MSU Law professor and clinic director support this work?
Being a clinical professor was invaluable to my role as a reporter for both the study committee and the drafting committee. I’m both an academic and a practitioner in the area of ICWA. All of my research and writing is all on ICWA and, through the Clinic, we represent tribes in complex appellate litigation. In addition, I’m lucky to do regular tribal site visits, talk with tribal attorneys all the time and attend conferences where tribal attorneys and judges are. I hear what they’re saying and see what they’re facing. All of that gives me a unique perspective as a reporter and an ability to share my expertise about what practice is actually like in various states.
There are very few jobs that allow you to take on this kind of project, which was incredibly important and also time-consuming. I feel really lucky to have MSU Law College’s support for this work, as well as an initial $400,000 grant from the ISHKODE Fund, which has been continued through a $750,000 grant from the First Nations Development Institute. Collectively, this funding supports the Clinic’s work to move the ICWA practice forward, including my work on the Uniform State ICWA over the past four years.
The continued financial support will allow us to increase staffing, make our work available to more people and ensure the work we do is memorialized. The grant also enables me to travel for things like legislative testimonies and to attend the Tribal In-House Counsel Association Conference in October, where I’ll host a day-long session on the Uniform State ICWA.
What does the approval of the Uniform State ICWA mean for Native families?
While the adoption of the uniform act itself remains one step away from the protections applying to Native families in state court, the adoption by the Uniform Law Commission demonstrates the continued support for ICWA and the protections it currently provides. I am hopeful states will adopt this act, and families will see increased, uniform protections when they find themselves in state courts.
We have a lot of interest already and I’ve been contacted by tribes in states such as Alaska, Arizona, North Carolina and Virginia. I’m hopeful that states without a state ICWA will adopt it. There will also be ways in which states that already have a state ICWA may be able to adopt sections of it to assist with interpretation. Many state ICWA laws have not been updated since their initial passage; Michigan’s hasn’t really been updated since 2013. So, there’s opportunity in both states with state ICWA laws and without.
What do you hope to see moving forward?
I’m hoping for increased awareness around the Act. It’s very frustrating that ICWA is 50 years old and we are still doing the very basics of education around it. So, increased education and awareness around this Act and ICWA will help in the work that we do.
I would like increased and consistent protections for Native children and families. I would like acknowledgment and actual practice that keeps Native children with their families, when safe to do so, and in their communities otherwise. And I would hope our discussions help improve dependency child welfare practice for all children.
I consider myself extremely lucky to do this work and work with people I count not just as colleagues but as friends. I see personally how important culture and community are to Native families and children, as well as what happens when children aren’t allowed to have that connection. Preserving Native families and tribes is vital to our collective futures—I wouldn’t want to do be doing any other work.